Safety and OSHA News

No proof whatsoever: Does worker still get comp?

back-injury

When no one witnesses a workplace injury and the injured employee files for workers’ comp, sometimes all you have to go on is the worker’s story. The situation can become more complicated when the worker delays reporting the injury.

Frank Karban said he was moving equipment at work on Feb. 24, 2007, when he bent down, made a twisting motion and “felt a pop” in the right side of his lower back.

Karban says he continued to work that day and didn’t report the injury to his supervisor until the next month.

His supervisor says Karban never told him about the incident.

Almost seven months later, Karban went to his employer’s environmental health and safety representative to report the injury.

Before he reported the injury at work, Karban saw his doctor who sent him for an MRI, which revealed lumbar spine abnormalities. His doctor and a specialist both recommended Karban stop working.

More than a year after the injury took place, Karban filed a claim seeking lifetime medical benefits for injuries resulting from the injury and temporary total disability. He claimed he’d never suffered a back injury before the workplace incident.

His doctor sent a note to the Workers’ Compensation Commission stating Karban had been to his office complaining that he hurt his back. However, that visit happened one month before Karban said the injury occurred at work.

Despite that information from the doctor, a deputy commissioner awarded Karban temporary total disability benefits for six months.

His former employer appealed, and the full commission reversed the deputy commissioner’s ruling, finding Karban failed to prove he suffered a compensable workplace injury and failed to provide adequate notice of the injury to his employer. The full commission also reversed the deputy commissioner’s finding that Karban was credible.

Karban appealed to a state court.

The court sided with the full commission: It didn’t find Karban to be credible. Specifically, the court noted several discrepancies in Karban’s testimony. Karban was unable to explain the medical records that showed he suffered an injury before his alleged workplace injury.

The credibility issue was enough to throw out Karban’s claim — in the end, he didn’t get workers’ comp benefits. Therefore, the court never ruled on whether he provided adequate notice of his injury to his employer.

Cite: Karban v. Universal Fiber Systems, Court of Appeals of VA, No. 2094-09-3, 7/13/10.

As this case shows, the longer a worker waits to report an injury, the more complicated a workers’ comp claim can become. What is your company’s policy on employees reporting injuries? How late is too late? Do you have specific procedures for when no one else witnesses a workplace injury? Let us know what you think in the Comments Box below.

Print Friendly

Subscribe Today

Get the latest and greatest safety news and insights delivered to your inbox.

Comments

  1. Earl Miner says:

    This situation has happened twice in the last several years at our facility. Her is one example.

    A woman reported a back injury 8 months after it apparently occurred. she listed the specific day, which machine she was working on, the people she was waorking with, and the product that was being made.

    The machine was down for preventative maintenance for the entire week, when she says she was injured. The people she said were with her did not have time cards or get paid on the day. The product she named was not produced in that entire month.

    While on TPD and performing minimal duty (she usually swept the floor). Someone else even had to empty the dust pan for her. On her off days she came in for her check carrying her grandchild with no apparent pain.

    We felt it was clearly provd that this claim had no credibility.

    The compensation commission then awarded her TTD, extensive treatments, and finally a PPI after an IME with a practioner who was not an expert in the field.

    Confidence in the system is lacking at our business.

  2. This happens to me all the time. “I hurt my back three weeks ago” no wittnesses, unfortunately, the burden of proof is usually on the employer and we can not prove it did not happen at work. I have tried everything from survillence to IME’s to FCE’s. In this situation they were lucky enough to be able to catch him in a lie, most of the time we are not that lucky.
    We have lots of degenerative conditions which are aggravated leading to lost time and usually surgery.

    Once we settle with an employee I have a rash of injuries. It is so frustrating.

  3. SafetyMan says:

    It’s just another example of how the system unjustly benefits workers. What is especially disturbing is when the employee offers no valid support for the claim but is awarded benefits anyway. Too many people know how to game a system that easily gamed. We all pay for it.

  4. They learn how to play very quickly. I have a guy in LA who injured his knee, he went to Az to have surgery and there was not a legal thing I could do about it. He was out for 144 weeks which is totally crazy. He milked it to the tee. He had a long vacation on us and now will get a hefty settlement. I wish we could get these laws changed.

  5. NoWinSitu says:

    New York State has some of the worst law pertaining to WC.

  6. Matt Crew says:

    I strongly suggest if you don’t have one develop a company policy for all employees to report all injuries or illnesses to a supervisor immediately, regardless of how minimal it may appear. Include in the policy a delay in reporting may subject the employee to disciplinary actions.

    It is harsh, but the reality is every workplace injury has to be taken seriously because the costs can be outrageous.

  7. My employee reported an injury that happened five days before– she made the report on her last day of work (because the store had been closed). She’s in another state so I don’t know if she had exhibited any symptoms or told anyone about the injury prior to reporting it to me. We have a policy that requires immediate reports of any injury, no matter how slight, but what disciplinary measures do I have left for this employee — her job is already gone.

  8. We have a disciplinary procedure and they don’t care about it. We are firm and give them a final warning but they just retain council and proceed with settlement request. They learn how to work the system. I have repeaters all the time. I have 46 locations across the US and the different laws are just amazing. In TX there are no settlements but they have life time medical. CA is also just horrible.

  9. Everyone of my employees were and all new hires are given a card that has how, what, where, when, and to whom to report and where to go for treatment. It also contains contact information for the carrier and employer. Most importantly, it has the Call Center number, available 24/7, for employees to report every injury. We post safety-green posters everywhere that state, “Report all on-the-job injuries whether you go to a doctor or not.” “Notify site adminstration first.” “You must submit a detailed work status…if you go to a doctor.” “For more assistance…contact…etc.” The Call Center number is huge, can’t be missed.
    I now have a defense against late reporting. The call center system has been in effect less than a year, but some supervisors have been able to write directives about reporting their injuries when they happen. The number of “report only” claims have increased although number of active claims have declined.
    The Accident Investigation Report asks for witnesses. If the reporting was delayed, why? What was the cause. How can it be prevented? What are you (the site administration) doing to see that the situation is being taken care of?
    Word gets around fast when we go after the red flags. I also use nurse case managers on many cases, especially when the employee goes to certain doctors or never-heard-of doctors.
    With ever decreasing budgets and personnel cuts it becomes a double edged sword! I am much more aggressive and have utilized the appeals process more than I ever have before.
    Sorry people, you can not utilize the crutches into the doctors office and then leave them at home when you take a trip to Mexico! I have an investigator who will cross the border.

  10. Ms Colin DeBre' says:

    I am a safety manager for a manufacturing facility here in California, and the past 15 years I seen my share of claims such as the ones mentioned above. This question is at Matt Crew: We already inform our employees about reporting the accident no matter how small, and I am interested in your idea; but what type of “Discipline” should be used? MsColin@sbcglobal.net

  11. I agree with you Matt, a safety reporting policy is crucial. We also do a root cause investigation for every incident/ accident. This works well for when there are no witnesses. We (I) ask lots of questions. Every injury needs to be reported immediatly, but the question posed; “How late is too late?” from this article and others, evidently it is a case by case situation.

  12. Matt Crew says:

    In Re Colin DeBre:

    We have a comprehensive employee training program where all employees will be introduced to safety rules and guidelines, which includes timely reporting of injuries (within 24 hrs). It then becomes the responsibility of all employees to learn and adhere to the policies and procedures as outlined in this program.

    Any employee found in violation of a safety rule or guideline will be subject to disciplinary action up to and including termination of employment. The following is a guideline (but not an absolute
    requirement) for discipline relative to safety:

    1. Verbal warning – Verbal statement to employee that he/she has violated a rule and/or regulation and that such violation may not continue.
    2. Written warning – Formal notification in writing to employee that he/she has violated a rule and/or regulation.
    3. Written warning plus suspension without pay. The amount of days anticipated will be addressed by their manager/supervisor.
    4. Termination – the employer/employee relationship is severed

    It should be noted that the steps listed are recommended guidelines. Some violations may be serious enough to warrant immediate termination or suspension on the first offense. For instance in the course of the post-injury investigation, it is determined that the employee provided a fraudulent report, i.e. had suffered the injury outside the course of employment and claimed it happened at work, we would likely terminate the employee. Granted we would be on the hook for the medical claim, but we eliminated a dishonest employee that has the potential to cause more damage to our organization.

    Obviously there is no fail save way to ensure justice is served, but you have to start somewhere.

Trackbacks

  1. […] This post was mentioned on Twitter by MSDSonline – Brad H, Safety News Alert. Safety News Alert said: No proof whatsoever: Does worker still get comp?: When no one witnesses a workplace injury and the injured employ… http://bit.ly/a4OIid […]

  2. […] No proof whatsoever: Does worker still get comp? | SafetyNewsAlert … […]

Speak Your Mind

*